April 4, 2014
Private: Supreme Goldfish
Ciara Torres-Spelliscy, McCutcheon v. Federal Election Commission
by Ciara Torres-Spelliscy, Assistant Professor of Law, Stetson University College of Law; Co-Faculty Advisor, Stetson University College of Law ACS Student Chapter; Fellow, Brennan Center for Justice; Author, Has the Tide Turned in Favor of Disclosure? Revealing Money in Politics after Citizens United and Doe v. Reed
Goldfish have a reputation for short memories. Once around the bowl and the goldfish forgets where he has been. The Supreme Court is behaving like goldfish when it comes to campaign finance law. Not only are they forgetting precedent from decades ago, they can’t even recall cases from the beginning of the Roberts Court—a mere eight years ago.
On Wednesday, April 2, the Supreme Court in McCutcheon v. FEC ruled 5-4 (natch, since all big campaign finance cases of late are 5-4) that federal aggregate contribution limits are unconstitutional. This trashes the current limit of $123,200 and replaces it with a figure north of $3 million every two years for the very well-heeled, who can afford such extravagant sums.
To get this result in McCutcheon, the Supreme Court overruled part of the seminal Buckley v. Valeo case from 1976 for the first time. Buckley has been at issue in many cases including one from first term of the Roberts Court called Randall v. Sorrell. You can be forgiven if you’ve never heard of this particular case. Randall was a big deal for campaign finance nerds, but it was met with a yawn by the general public as it essentially reaffirmed Buckley from thirty years before.
Randall was a conscious progressive test case of Buckley’s basic structure, which has generated a cottage industry of criticism ever since it was originally decided per curiam in the mid-1970s. Buckley ruled that campaign expenditures could not be limited, but campaign contributions could. This left federal candidates with a bottomless demand for campaign cash and a limited supply. Hence, this case is blamed for the endless treadmill of dialing for dollars for candidates for Congress and the Presidency.
Vermont decided they had had enough of this arms-race style structure of candidates raising endless piles of money. So instead, Vermont put in place a system of campaign contribution limits as well as expenditure limits—a direct challenge to Buckley’s holding. The idea was, circumstances had changed in the intervening 30 years, thus providing a credible reason for why Buckley should be overruled to allow expenditure limits in Randall.
Vermont might have had a reasonable chance in the Randall case, if there had not been a change in personalities while the case headed for the Supreme Court. But Chief Justice Rehnquist died and Justice O’Connor retired to take care of her ailing husband. In their place Chief Justice Roberts and Justice Alito arrived to take a carving knife to Vermont’s theory of campaign finance.
The Randall decision written by Justice Breyer rejects Vermont’s innovative contribution and expenditure limit combo as violating Buckley. Buckley was embraced under stare decisis as a pillar of campaign finance jurisprudence that could not be lightly dislodged, even by a state adjusting its own election laws.
But apparently now in 2014, Buckley is not so sacrosanct if the attack comes from the other end of the ideological spectrum. In McCutcheon, the plaintiff claimed he felt chilled by the aggregate limits because he had more than $123,200 that he wanted to give to federal candidates. Aggregate contribution limits had been one of the many types of contribution limits that the Buckley Court upheld as being constitutional. But oh well, not any more, said the Court in McCutcheon. The limits have been tossed like so much dirty fish bowl water out into the gutter.
And in doing so, the Court appears to have forgotten not only the original Buckley case, but also its own more recent reaffirmations of Buckley, which happened not just in Randall (upholding Buckley’s approach to expenditure limits in 2006), but also in 2011’s Bennett case (upholding Buckley’s approach to public financing), and in 2010’s Citizens United case (upholding Buckley’s approach to disclosure of money in politics.)
But now the Supreme goldfish are lost in their bowls. It might be humorous to see the Justices bumble around so badly, except that they have our democracy in their hands, and they look utterly unmoored from any long-standing, or even short-standing, precedent.